fees -comm ass'n

Generally speaking, to charge any amount to an owner, including a fee, an association needs authority to do so in the declaration (CC&Rs) or the law.  This is particularly important if an association is charging a fee that is above and beyond the actual costs incurred by the association for a service provided to an owner.  Thus, as a general matter, a community's CC&Rs should contain authorization for any fee an association charges.

But, the law authorizes the association rules (such as a fee schedule) to impose a fee or charge for the use or operation of the common areas, and a service provided to an owner.  So, the rules may provide authority for a fee charged to an owner for services the HOA provides to that owner. 

Such a fee should be reasonably related to the costs of providing the service or the value of the service, unless the CC&Rs state the fee does not have to be limited to such costs or value.  This limitation is not stated in a Utah statute, but is an application of the association’s duty to treat the members of the association fairly.  In other words, because of that duty, fees should not be used to force a minority of the community to subsidize the benefits to the other members, unless the required number of members agree in an amendment to the CC&Rs. These principles come from common law, as stated in the Third Restatement of the Law, Property (Servitudes), not Utah statute.

So, as a matter of general practice, rather than being funded by fees, the common expenses of the association should be funded by regular assessments such that each owner pays a proportionate share of the common expenses in the proportions stated in the CC&Rs.  But, the association can charge whatever fee authorized in the recorded CC&Rs, regardless of actual costs, except a fee for review of architectural plans (which can’t exceeds actual costs).  The rules (written policies, fee schedules, etc.) alone can authorize a fee for a service provided to an owner, but such a fee should be limited to actual costs or the value of the service.

In addition to fees authorized to be charged against owners in an association's governing documents, certain fees are authorized by statutes listed below (separate from assessments or fines).

Statutes and Cases:

(For reference: 57-8 is the Condo Act, 57-8a is the Community Association Act, 16-6a is the Nonprofit Act)

57-8a-106. Fee for providing payoff information needed at closing
57-8a-109. Limit on fee for approval of plans
57-8a-206. Written statement of unpaid assessment
57-8a-209. Rental restrictions
57-8a-218. Equal treatment by rules required -- Limits on association rules and design criteria
57-8a-227. Records -- Availability for examination
57-8a-311. Statement from association's manager or board of unpaid assessment
57-8a-701. Solar energy system -- Prohibition or restriction in declaration or association rule